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[2013] NSWSC 152
Supreme Court of NSW
2013-03-04
Fullerton J
Original judgment source is linked above.
Judgment 1HER HONOUR: On 8 October 2012 orders were made under r 28.2 of the Uniform Civil Procedure Rules 2005 to permit resolution as a separate question whether the proceedings commenced by the plaintiff on 28 April 2011 against the University of Sydney Union (the Union) are maintainable under relevant provisions of the Limitation Act 1969. 2The plaintiff and her current solicitor, Mr Matthew Berenger, filed affidavits to which various documents were annexed. They were both cross-examined. The defendant relied upon affidavits of Mr Patrick Riordan, solicitor, and Ms Rachael Hughes, an employee of the University, importantly, as will become obvious, annexing various photographs of the exterior and interior of the Wentworth Building located within the grounds of the University of Sydney (the University) where the words "University of Sydney Union, Wentworth Building" are prominently displayed, including a photograph of the Tenants Directory.
Relevant facts 3On 21 May 2003 the plaintiff, who was at that time employed by the University as a clinical psychologist, fell down a flight of stairs in the Wentworth Building during a fire drill. She was in the building for a scheduled medical appointment. She suffered extensive injuries. 4On 26 May 2003 she lodged a workers compensation claim against the University as her employer. She has been in receipt of benefits under the workers compensation legislation since that time. 5Critically, so far as the current proceedings are concerned, the pro forma workers compensation claim form issued by the University's insurer makes provision for a claimant to offer an opinion as to the reason for the accident and the person or persons thought to be responsible, as to which the plaintiff provided the following information: The fire exit was not adequately maintained. The false alarm in combination with lack of lighting + debris on stairs meant I could not see to exit safely. I believe the University Union was negligent - did not maintain a safe environment. (emphasis added) 6The plaintiff did not obtain any legal advice as to any action she may have had for damages against the "University Union" (or any other party) as the entity at fault before submitting the claim for workers compensation against the University as her employer. 7On 3 June 2003 the plaintiff prepared a further document entitled "Occupational Injury, Illness and Incident Report" (the Report). This was a pro forma document apparently completed as part of the University's risk management processes when an injury is sustained on University grounds. There is no reference in that document to the Union as the party at fault. 8The Report (as tendered) also includes handwritten comments or notations apparently by the person who dealt with the incident on behalf of the University, including the fact that the "Wentworth Facilities Manager", Alan Ferguson, was spoken to on 12 June 2003. Some additional notes were also attached to the document which appear to have been written by the same person where Mr Ferguson's telephone numbers are noted. 9In September 2003 the plaintiff consulted solicitors at Steve Masselos & Co, for advice generally as to her rights as an injured person. She gave evidence that included receiving advice as to the identity of the party at fault in failing to maintain the fire stairs in a safe condition. 10In a comprehensive letter of advice dated 23 September 2003, the plaintiff was informed that a title search had identified the University as the "owner" of the Wentworth Building and, in the view of her solicitor, because the injury occurred in the fire escape forming part of the common property of the building, the care and control of that part of the building vested in the University as the owner. 11It was common ground on the hearing of the motion that the title search identified the University as the registered proprietor of the Wentworth Building and the Commonwealth of Australia and Optus Limited as the only registered lessees. Although it was also common ground that the defendant was in fact the occupier of the Wentworth Building at the relevant time, the precise nature of the legal relationship between the University as registered proprietor and the defendant as occupier was not the subject of evidence. 12The solicitor also advised that since the University was also the plaintiff's employer the Workers Compensation Act 1987 would govern any claim for damages, the success of which would be conditional upon her being assessed at 15 per cent (or greater) of whole person impairment. He also advised as follows: Although premature, it is most unlikely that we would recommend that you pursue a claim for damages against your employer. You will however be entitled to lump sum compensation on the provisions of the Workers Compensation Act once your injuries have stabilised. In any event, before a decision is made as to which course of action should be taken we would obtain appropriate medical reports from your specialist to assess the level of your whole person impairment. We note that you are contemplating surgery some time in the near future and we would recommend that any legal action be delayed for a period of approximately 6 months following surgery. There is a 3 year limitation period dating from the date of the accident, in which proceedings must be filed against your employer should you elect to proceed at Common Law. 13In cross-examination the plaintiff said that she accepted that advice (including that the University as owner of the Wentworth Building had care and control of the fire stairs) and did not instruct her solicitor to pursue a claim for work injury damages. She said that her primary concern at that time (and for some years thereafter) was to maintain a program of post injury rehabilitation to ensure she was able to make a continuing financial contribution to the welfare of her husband and children, despite her injuries. 14On or about 18 November 2003 the plaintiff sought legal advice from Maurice Blackburn Cashman Lawyers (MBC Lawyers). The plaintiff gave evidence that she did not have an accurate recall of her dealings with MBC Lawyers but that she would only have been talking to them about her workers compensation claim. The three items of correspondence tendered in the proceedings referred only to the plaintiff's workers compensation claim. She said that because she was in continuing receipt of benefits under the statutory scheme, and because she was focused on getting well, she was not interested in pursuing any claim for damages at common law and did not receive any specific advice from the solicitors to commence proceedings against anyone for common law damages. The plaintiff said that although she did not intend to pursue any rights she may have had for a work injury damages claim against the University, largely because of her continuing ill health, she nonetheless persisted in the belief (albeit mistaken) that the University was the party responsible for the maintenance of the fire stairs and the party against whom she believed an action in damages would be brought were she to elect to do so. 15On 14 July 2004 MBC Lawyers made arrangements for her to attend a specialist, an appointment she did not keep. On or about 15 July 2005 they ceased to act. 16On 27 February 2007, Leitch Hasson Dent (her current solicitors) confirmed receipt of instructions to act on her behalf in respect of her workers compensation claim. After providing comprehensive advice as to the status of her claim they also advised as follows: ` At this point, it remains to be seen just how significant your injuries turn out to be as to whether or not you may have further rights to sue your [sic] or someone else under Common Law. Should your injuries be severe enough to overcome certain hurdles in the Workers Compensation Act, you may have a claim under the Common Law for negligence against your employer for failing to provide you with a safe system of work or a safe work place. Negligence claims are only available for severe injuries and so in order to claim negligence you must first have a certain level of impairment. We can advise that you must reach a minimum 15% whole person impairment for a negligence claim. There is a strict time limit in which to claim Common Law damages against another party, and you must commence legal proceedings in the appropriate Tribunal within three years of the date of the accident. We shall monitor your claim as the evidence of the circumstances of your accident and the medical evidence unfolds and advise you accordingly as to your entitlements under Workers Compensation Law or Common Law. 17There was no direct evidence from Mr Berenger, either in his affidavit or under cross-examination, as to the entity or entities he considered might be liable at common law. Rather, it appeared to be the agreed position of both counsel in submissions that Mr Berenger laboured under the same misapprehension as the plaintiff's first solicitor that the title search was definitive of the identity of the entity liable at common law for the injuries the plaintiff sustained in the fire stairs. Mr Berenger annexed the original title search to his affidavit. 18Between April 2007 and August 2008 medico-legal reports were obtained by Leitch Hasson Dent which culminated in the settlement of the plaintiff's claim against the University for lump sum compensation under the workers compensation legislation. 19On 14 October 2008, after seeking the advice of counsel, a s 281 notice under the Workplace Injury Management and Workers Compensation Act 1998 was served on the solicitor for the University, initiating a claim for work injury damages. 20By letter dated 3 December 2008, the University advised that it had no control over the lighting of the stairwells in the Wentworth Building; no control over any system to supervise the egress of people from the building upon the sounding of a fire alarm and, accordingly, that the plaintiff's injury was not the result of any negligence or breach of duty on its part as the plaintiff's employer. 21On 10 December 2009, the plaintiff gave instructions to commence proceedings against the University as the registered proprietor of the Wentworth Building on the basis that there were reasonable grounds to believe that it would retain the responsibility for the care, control and management of the fire stairs despite the fact that there were commercial tenants in occupation. 22On 15 January 2010, after receipt of an expert report from a consulting engineer in lighting, the plaintiff commenced proceedings in the District Court against the University as the owner/occupier of the Wentworth Building for work injury damages. (Although the instructing letter was not tendered it was common ground that the plaintiff's solicitors were, even at this time, proceeding on the mistaken assumption that the University was the party at fault.) 23On 12 March 2010 the University filed a defence admitting that it was the owner of the Wentworth Building but denying that it was the occupier of the building at the relevant time. 24By letter dated 31 March 2010 (in response to a request from the plaintiff's solicitor), the solicitor for the University advised that the Union was the occupier of the Wentworth Building. No documents were produced at that time or thereafter to substantiate that assertion. 25On 1 July 2010 the plaintiff served a notice to produce on the University seeking production of documents identifying the occupier of the fire stairs within the Wentworth Building. (No documents were produced.) 26On 16 July 2010 the plaintiff served subpoenae on the University and the Facilities Manager, University of Sydney Union, in an effort to ascertain the legal entity responsible for the fire stairs. 27On 26 July 2010 the only document produced was an "Occupation License" between the University as licensor and the defendant as licensee dated 30 June 2008. No document relating to the occupation of the building at the date of injury was produced. 28On 23 September 2010 the University advised that documents requested by the plaintiff's solicitors (as to the "occupier" of the fire stairs) fell outside the scope of workers compensation legislation. 29The District Court proceedings remained on foot until 12 August 2010 when the claim against the University for work injury damages was struck out (apparently due to the plaintiff's failure to comply with procedural requirements). 30On 28 April 2011 the plaintiff commenced proceedings in the District Court against the defendant for damages in negligence. (Service of the statement of claim was preceded by correspondence complaining that the defendant had failed to answer the subpoenae.) 31On 11 April 2012 the defendant filed a defence. On 4 May 2011, in the course of mediation, the defendant admitted that it was responsible for the fire stairs as occupier of the building. 32On 30 May 2012 the defendant advised in writing that it intended to defend the claim, inter alia, on the basis that it was statute barred. 33On 15 August 2012 the proceedings were transferred to this Court.
The legislation 34Since the injury the subject of the claim for damages was suffered after 6 December 2002, the governing provisions are found in Div 6 of the Limitation Act. They provide, relevantly, as follows: 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (emphasis added) ... 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased. (emphasis added) 35These provisions have been the subject of detailed consideration by the Court of Appeal in Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454, Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 and State of New South Wales v Gillett [2012] NSWCA 83. In Gillett the Court of Appeal confirmed the correctness of the interpretation given to s 50D of the Limitation Act in Baker-Morrison.
The issues for determination 36It was common ground that the plaintiff knew that the injury occurred on 21 May 2003, as required by s 50D(1)(a) of the Limitation Act. It was also accepted that she knew, also as at that date, the injury was sufficiently serious to justify the bringing of the action, as required by s 50D(1)(c). The only issue for determination was when the plaintiff knew (or ought to have known) that the injury was caused by the fault of the defendant as required by s 50D(1)(b). 37The detailed consideration given to the generic concept of "fault" in s 50D(1)(b) in Baker-Morrison (and the subject of review in Gillett) as one of the key facts necessary to give rise to legal liability for the purposes of the Limitation Act does not arise, in the direct sense, in this case. Here, as both counsel agreed, the issue is when the plaintiff knew (or ought to have known) that the defendant was the party at fault, the identity of the defendant being an essential fact in the context of knowing where fault lies for the purposes of s 50D(1)(b). 38Counsel for the defendant accepted that he had the burden of establishing, on the probabilities, that the plaintiff knew or was aware (or that she ought to have known) that the defendant was the party at fault at some time on or before 24 April 2008 (being three years prior to the filing of proceedings on 24 April 2011). 39In her affidavit the plaintiff stated, in categorical terms, that she did not know the defendant was the occupier of the Wentworth Building (and, in that capacity, responsible for the care and maintenance of the fire stairs and legally liable for causing her injury) until she was informed of that fact by her solicitors after the defendant's oral admission to that effect on 4 May 2011 made in the course of mediation and then confirmed in writing on 17 May 2012. Her affidavit did not annex the workers compensation claim form and she did not otherwise refer to what she knew or believed as to the identity of the party at fault prior to seeking the advice of her solicitor in September 2003 at which time she was advised that the University was the owner/occupier of the building. 40It was the defendant's primary case that the plaintiff knew or was aware that it was the defendant that was at fault for failing to maintain the fire stairs in the Wentworth Building in a safe state on the date of the injury in May 2003 or, at the latest, on the date she completed the claim form five days later. It was submitted that her belief that "the University Union was negligent" in the claim form must have been intended by her as indicating an awareness that the defendant was at fault in contrast with her claim for workers compensation against the University where no question of fault arises. 41The plaintiff said in cross-examination that although the claim form was prepared with the assistance of her mother, the assertion that the "University Union was negligent" was in her handwriting. She also agreed that as at the date of the injury she believed the Union was the owner/occupier of the building (and at fault) because "it was written everywhere". Earlier in her evidence she had been shown the photographs annexed to Ms Hughes' affidavit and agreed that she had seen the signage on the exterior of the Wentworth Building, and at various locations inside the complex, designating it as the "University of Sydney Union, Wentworth Building" literally thousands of times, both as an undergraduate student and Union member and later as an employee of the University. 42The plaintiff's counsel submitted that the statement of belief volunteered in the claim form that "the Union was negligent" was nothing more than an uninformed assertion that she believed the Union was at fault and that it did not equate with actual knowledge of the identity of the defendant which is required for the purposes of s 50D(1)(b). Counsel submitted it has been authoritatively held that s 50D(1)(b) is concerned with actual or constructive knowledge not subsidiary states of belief and, accordingly, the defendant was obliged to establish that the plaintiff actually knew that it was the defendant who was legally liable for her injury as distinct from the defendant being, from her legally uninformed perspective, one possible entity amongst. 43As Basten JA emphasised in Baker-Morrison, the state of satisfaction required by s 50D necessitates giving consideration to: (i) the concept of knowledge; and (ii) each of the identified facts in s 50D(1)(a), (b) and (c). His Honour said at [26]: These aspects are interrelated, in the sense that if the facts are properly within the understanding and evaluation of a non-professional, the nature of the person's knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise. It is therefore convenient to consider first the content of the prescribed facts... 44His Honour then analysed the concept of fault in s 50D(1)(b) as one of the key factors that needs to be "known" before a cause of action is discoverable. At [28] his Honour said: In para (b), the word "fault" is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as "discoverable" for the purposes of s 50C is "the cause of action". The "fact" contemplated by para (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation. 45At [39] his Honour rejected the proposition that it was necessary for a person to be able to articulate a particular cause of action for the purposes of s 50D(1)(b). Rather, "It [was] the key factors necessary to establish legal liability [that had to] be known". At [94] in Gillett Beazley JA confirmed that his Honour's approach to the construction of s 50D was correct. Campbell JA also agreed, publishing additional observations as to the construction of s 50D with which McColl, Young and Whealy JJA agreed. 46Campbell JA noted that in Baker-Morrison, Basten JA was satisfied that a legal evaluative judgment as to the availability of a protective device on the door of the police station was required before the plaintiff's mother could be said to know (or to be aware) that her daughter's injury was caused by the failure of the defendant to take reasonable care for her safety. He held that was so despite the plaintiff's mother being informed by her solicitor that within days of the injury he noted an angle iron had been installed at the base of the door, which the solicitor inferred was intended to diminish or eliminate the risk of an injury of the kind the child suffered. As to that analysis, Campbell JA observed at [130]: But those passages do not mean that all that s 50D(1)(b) requires is that the relevant person knows or ought to know that the injury or death in question was caused by events or circumstances that add up to there being a failure to adhere to some legal standard of conduct (such as failure to take reasonable care) that is part of a cause of action against a defendant. It is just identifying a particular "key factor necessary to establish legal liability" of which the plaintiff's mother was ignorant. 47At [131] after confirming the correctness of Basten JA's analysis of the state of knowledge necessary for s 50D(1)(c), his Honour emphasised that, as with s 50D(1)(c), knowledge of actionability is one of the key factors necessary to establish liability and which must be known before s 50D(1)(b) is satisfied. 48The issue that presents in this case is whether the plaintiff needed to make a legally informed evaluative judgment as to the identity of the occupier of the Wentworth Building before knowledge or awareness that the defendant was the entity at fault could be attributed to her under s 50D(1)(b) or whether, as the defendant submitted, her belief that the Union was at fault in May 2003 was sufficient. 49The defendant also submitted that knowledge of actionability as a key factor in s 50D(1)(b) is also satisfied since the plaintiff's belief that the Union was negligent also means that it is probable that she knew (or was aware) that the defendant's acts or omissions which caused her to fall were legally actionable. 50The defendant submitted that even if the plaintiff had not turned her mind to who was at fault for her injury (in the actionable sense) when she completed the workers compensation claim form, the evidence she gave in cross-examination amounted to a concession that she knew (or was aware) that the defendant was the occupier of the Wentworth Building (and responsible for the maintenance of stairs and stairwells) given the extent of signage on the exterior and interior of the Wentworth Building designating the building as the Student Union Building, and that she did not need or require legal advice to confirm that fact before her claim against the defendant was actionable. That being the case, the defendant further submitted that it is irrelevant that the plaintiff's knowledge or awareness of the Union as the party at fault was countermanded in September 2003 upon receipt of her solicitor's advice, and similarly irrelevant that she was misled into accepting that advice as accurate by the terms of the title search. 51At [45] in Baker-Morrison, Basten JA dealt with the knowledge the person is required to have for the limitation period to commence to run, as to which his Honour said: ...In common with extension provisions, s 50D refers, somewhat simplistically, to whether the person "knows" (or ought to "know") the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the subsection refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings...
Conclusion 52I find it difficult to interpret the plaintiff's belief that the University Union was negligent as anything other than an attribution of fault on the basis that she believed (and on reasonable grounds) that the Union was the occupier of the Wentworth Building and that the failure to maintain the fire stairs and to ensure they were free of debris and well lit was their responsibility, breach of which rendered them liable for her injuries. I am satisfied that those interrelated facts were within her understanding and evaluation in May 2003 without the need for professional advice and, accordingly, that she knew the identity of the defendant as the entity at fault for the purposes of s 50D(1)(b). As Basten JA observed in the extract from Baker-Morrison above: ...It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established...(emphasis added) 53Having resolved to the view that the plaintiff knew the identity of the defendant as the party at fault in May 2003, I do not need to consider whether constructive knowledge can be attributed to her since an enquiry into that state of knowledge is premised on the assumption that the plaintiff either did not know or was unaware of the identity of the defendant, requiring an assessment to be made of what would have been ascertained had she not known of that fact. 54I would, however, make the following observations: On the plaintiff's behalf, it was submitted, and with some force, that prior to May 2011 she had taken all reasonable steps to ascertain the identity of the party at fault when as early as September 2003 she consulted solicitors (albeit receiving incorrect advice) which she thereafter believed to be correct and upon which she relied. Counsel submitted that, save for the assertion that further enquiries would have ascertained the defendant as the party at fault, the defendant does not identify what further steps or lines of enquiry the plaintiff should have reasonably undertaken to ascertain that fact, nor why the steps she did take were insufficient or inadequate in the circumstances. 55While I accept that there was a reference both on the Report and on the attachments to Mr Ferguson as the supervisor of the Wentworth Building, in the absence of any evidence that he knew that the defendant was occupying the building under license (if that be the fact as at May 2003), or that he was authorised to release that information, I am not persuaded that the identity of the defendant as occupier would have been readily ascertainable by that means.
Orders 561. The plaintiff's cause of action against the defendant is not maintainable being commenced more than three years after the expiration of the limitation period in s 50C(1)(a) of the Limitation Act. 2. The plaintiff is to pay the defendant's costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2013
Baggs
University of Sydney Union